Photo: Jarrad Henderson, USA TODAY
By: Daniel Hemel and David Herzig
[Note: This post is co-authored with Daniel Hemel, Assistant Professor of Law at The University of Chicago School of Law.]
The strategic case against a Democratic filibuster of Neil Gorsuch is straightforward. The argument is not that the filibuster will prevent President Trump from putting someone like Andrew Napolitano on the Court. The argument is that the filibuster may prevent President Trump from filling a future vacancy with a well-credentialed conservative who is ideologically similar to or right of Judge Gorsuch. To elaborate:
— (a) The filibuster accomplishes no work when there are fewer than 50 Senators who will support a nominee on an up-or-down vote. (Napolitano presumably falls into this category.)
— (b) The filibuster also does no work when there are 50 or more Senators who will support a nominee even if that means going nuclear. (Judge Gorsuch appears to fall into this category.)
— (c) The filibuster matters when (1) there is a nominee who would win 50 or more Senators on an up-or-down vote, but (2) fewer than 50 Senators would support the nuclear option in order to put the nominee on the Court.
Is (c) an empty set?
We think not. There are quite a few Republican senators who would prefer to see the filibuster stay rather than go. This is so for at least three reasons. First, some Senators have long enough memories (e.g., Orrin Hatch, John McCain) or long enough time horizons (e.g., Ben Sasse) that they value the filibuster for when Republicans are in the minority. Second, some Senators (e.g., Lisa Murkowski, Sue Collins) realize that the filibuster is all that keeps them relevant. If it takes only 50 votes to do business, then the 51st and 52nd most conservative Senators are powerless. Third, some Senators (e.g., Lindsey Graham) appear to have an affinity for Senate tradition that will lead them to experience at least some disutility if the filibuster is discarded.
The question is whether these Senators’ preference for the filibuster is strong enough to cause them to vote against the nuclear option. The answer to that question is pretty clearly “no” in the context of Gorsuch. But it might well be otherwise in the context of an equally or even more conservative nominee named to fill a future vacancy that puts Roe v. Wade on the line. Remember that Sue Collins and Lisa Murkowski are pro-choice. Dean Heller of Nevada is less clear about his views, but he is running for reelection in 2018 in a state that is turning blue. If Justice Kennedy or one of the Democratic-appointed Justices leaves the bench, would these three Senators vote to confirm a staunchly conservative replacement? On an up-or-down vote, maybe. If it means going nuclear, then maybe still — but it is at least somewhat less likely.
And there is another scenario in which the filibuster matters. We do not know how the 2018 Senate elections will shake out. Most observers initially assumed that Republicans would pick up at least a few seats, given that 10 incumbent Democrats are running for reelection in states that went for Trump. But with the President’s approval ratings where they are, it’s not impossible to contemplate the Democrats actually gaining seats in 2018.
Imagine a 51–49 Senate with Lisa Murkowski as the critical vote, or a 50–50 Senate with Sue Collins as the critical vote (and maybe Joe Manchin sometimes crossing over party lines). Let’s say that Kennedy or a Democratic appointee then leaves the Court, and President Trump names an avowedly anti-abortion appellate judge to fill the vacancy. Is it plausible that Collins, Murkowski, or Manchin (a) might support the nominee on an up-or-down vote but (b) might be unwilling to go along with Mitch McConnell’s use of the nuclear option?
We think so. But more to the point: While it is not too difficult to come up with scenarios in which keeping the filibuster helps the Democrats defeat a very conservative nominee in the future, it is virtually impossible to come up with a story in which triggering the nuclear option accomplishes anything for the Democrats.
And so the strategic case against a Democratic filibuster becomes easy: The probability that Roe v. Wade will survive the Trump years is unambiguously higher if Democrats don’t trigger the nuclear option here than if they do. So too for a number of other landmark decisions whose fate might hang in the balance if another vacancy arises. (Grutter v. Bollinger? Perhaps even Obergefell?)
Thoughtful liberals say that this is a stolen seat that belongs to Merrick Garland, not Neil Gorsuch. We do not disagree. But filibustering here won’t change that. What it might change is whether Trump can use a future vacancy to fundamentally reshape American constitutional law.
Filibustering here might feel good in the moment. But it will increase the risk that women and girls across the country lose access to abortion and emergency contraception. It will increase the risk that transgender schoolchildren are humiliated every time they go to the bathroom. That matters a lot more than the momentary satisfaction of sticking it to the Republicans. Because if the nuclear option is triggered, it’s not Mitch McConnell who loses the most. It’s the people who rely on the Supreme Court precedents that will become that much less secure as a result.
[This was cross-posted at Whatever Source Derived.]
The Surly Subgroup 
On Garland: A lot is determined by custom. It’s fair to block a President from filling a court seat that opens up late in his term (though “late” is up for argument). There are zero cases in U.S. history of a nomination made in an election year being confirmed by a Senate not controlled by the President’s party. See https://en.wikipedia.org/wiki/List_of_nominations_to_the_Supreme_Court_of_the_United_States .
On the filibuster: the analysis in this post is correct. Again, custom is strong. The idea of the filibuster in the history of the Senate is that the majority lets a determined minority block legislation, if the minority proves it is determined enough. In recent decades, this has evolved to a different custom: that for most legislation, 60 votes are required for passage but not true filibuster is needed— no lengthy speechmaking that shows the minority’s intensity of feeling. This makes less sense and so is a less stable custom, I think. Its usefulness is that both sides would like to be able to block extreme appointments of the other side. Both sides would also like to get their side’s ordinary appointments through. Gorsuch is an ordinary appointment. Ann Coulter would be an extreme appointment.
I think the Senate Democrats very much wanted to let Gorsuch go through on a party-line vote. If Gorsuch was blocked, Trump would just nominate someone else, either a moderate like Gorsuch or an extremist, so there is no gain from blocking Gorsuch. But the Democratic senators are under an unusual sort of pressure from voters. All Democrats are angry that Hilary Clinton lost, and want their senators to be as obstructionist as possible, even if it’s counterproductive as far as policy outcomes. Many Democrats are Sanders supporters, who are also deeply suspicious of anyone in the Democrat leadership and would like to vote against them in primaries anyway, or stay home next election. Thus, Schumer was forced to filibuster.
The result is that Trump can now nominate an extremist for the next seat and only need 50 votes to confirm him.
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